‘Penetrative act by one is sufficient to convict all in the gang if there is common intention’; SC upholds conviction in 21-years-old gang rape case

Supreme Court: In an appeal filed against the judgment passed by the Madhya Pradesh High Court, wherein the Court confirmed the conviction and sentence of the convict by the Special Judge for offences punishable under Sections 366, 376(2)(g) and 342 of the Penal Code, 1860 (‘IPC’) and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘1989 Act’), by the division bench of Sanjay Karol and K.V. Viswanathan*, JJ. upheld the conviction of the convict found guilty of gang rape, rejecting the argument that he had not personally committed any act of penetration. The Court clarified that Section 376(2)(g) of the Penal Code, 1860 if a penetrative act was carried out by even one person, all others sharing a common intention could also be held liable.

Thus, while maintaining the conviction of the convict under Sections 366, 342, and 376(2)(g) of the IPC, set aside the conviction under Section 3(2)(v) of the 1989 Act. Further, to bring the sentence in line with that imposed on the servant for the offence under Section 376(2)(g), the Court modified the sentence of life imprisonment imposed on the convict to rigorous imprisonment for 10 years, along with a fine of Rs. 2,000/- and a default sentence of rigorous imprisonment for one year in case of non-payment of the fine.

Background

The prosecution case originated from a missing report lodged on 24-06-2004. The complainant informed the police that on the previous night, at 10:00 PM, his daughter, the prosecutrix, had gone to see the barat, accompanied by her friend. The complainant stated that the prosecutrix did not return home. Following the registration of the missing report, an investigation was initiated.

Upon the recovery of the prosecutrix, she stated that when she and her friend were returning from the wedding ceremony, they halted to attend to calls of nature. Afterward, as they were proceeding toward their house, the convict and his servant caught hold of them from behind. According to the prosecutrix, while the convict seized her, his servant was accompanying him. She stated that at the same time, her friend managed to escape. She further deposed that while one of the accused held her, the other gagged her mouth and threatened to kill her if she raised an alarm. The prosecutrix testified that the accused had a two-wheeler and forcefully made her sit on it, taking her to the convict’s house, which was situated in the middle of the fields. She deposed that both the convicts locked her in a room and committed rape with her.

For the offence punishable under Section 366 IPC, the convict was sentenced to 5 years of rigorous imprisonment with a fine of Rs. 2000/-, and in default of payment of the fine, was to undergo an additional 6 months of rigorous imprisonment. For the offences punishable under Section 376(2)(g) IPC and Section 3(2)(v) of the 1989 Act, the convict was sentenced to life imprisonment with rigorous imprisonment and a fine of Rs. 2000/-, and in default of the fine, was to undergo an additional 1 year of rigorous imprisonment. For the offence under Section 342 IPC, the convict was sentenced to 6 months of rigorous imprisonment with a fine of Rs. 200/-, and in default of the fine, was to undergo 2 months of rigorous imprisonment. Aggrieved by the sentence, the convict filed the present appeal.

The servant was sentenced for the same offences as that of the convict except that there was no conviction and sentence on the servant under the 1989 Act. The other difference was that insofar as Section 376(2)(g) was concerned, the servant was sentenced to 10 years rigorous imprisonment with a fine of Rs. 2000/- and, in default of fine, to undergo rigorous imprisonment for 1 year.

Analysis and Decision

The Court was convinced that, notwithstanding the minor contradictions, the prosecutrix’s evidence inspired confidence. She had clearly testified about the convict abducting her and committing rape on her. She had also clearly deposed about the wrongful confinement. Nothing was elicited in cross-examination that could dilute her testimony. The charges under Sections 366, 376(2)(g), and 342 IPC were clearly made out. The Court reiterated that the prosecutrix was not considered an accomplice, and if her evidence inspires confidence, it can be acted upon without the need for corroboration.

The Court reiterated that a woman or a girl subjected to sexual assault is not an accomplice, but a victim of another person’s lust and it will be improper and undesirable to test her evidence with suspicions. Thus, all that the law mandated was that the Court should be alive to and conscious of the fact that it was dealing with the evidence of a person who had an interest in the outcome of the charge levelled against her. If, after considering this aspect, the Court was satisfied that the evidence was trustworthy, there was nothing to prevent the Court from acting on the sole testimony of the prosecutrix.

The Court highlighted that the fact that in the FIR only rape by the servant was clearly mentioned and the role of the other convict was only to help and the further fact that the consent letter given by the prosecutrix and her father only mentioned about rape by the servant also does not be of any advantage to the convict, for the following reasons:

• The aspect of abduction under Section 366 IPC was clearly addressed, and there was no contradiction regarding it.

• The father of the prosecutrix lodged the missing report promptly on the morning of 24-06-2004.

• The prosecution witness was treated as hostile, on the aspect of recovery, his evidence was clearly believable as he states that Police recovered the girl in his presence from the convict’s house. The Court reiterated that the evidence of the prosecution witness could not be rejected in its entirety merely because the prosecution chose to treat him as hostile and cross-examined him. Where the evidence of such a witness was consistent with the case of the prosecution, it could be relied upon.

• The prosecutrix clearly, clinchingly and unwaveringly deposed about the commission of rape by both the convicts.

• Citing Section 114-A of the Evidence Act, 1872, the Court rejected the argument that the prosecutrix was in a relationship with the servant and the implication that there was consent. A reading of the evidence of the prosecutrix makes it amply clear that she was subjected to forcible sexual intercourse against her consent. She has also specifically denied the suggestion that she went with the servant of her free will.

The Court further highlighted that in Explanation 1 to 376(2)(g) in the Criminal Law (Amendment) Bill, 1980 (which eventually became Criminal Law (Amendment) Act, 1983), it was proposed that gang rape be defined as rape committed by three or more persons acting in furtherance of their common intention. The Joint Committee of Parliament recommended that in cases of gangrape “even if one commits rape all the other persons involved should be held responsible and be equally punished” and recommended that gangrape should be defined as “rape committed by one or more in a group of persons”. This recommendation was accepted and the Criminal Law (Amendment) Act, 1983 was enacted with the explanation in the present form.

The Court emphasised that in a case of gang rape under Section 376(2)(g), a penetrative act by one was enough to render all in the gang for punishment as long as they have acted in furtherance of the common intention. Further, common intention was implicit in the charge of Section 376(2)(g) itself and all that was needed was evidence to show the existence of common intention.

Examining the evidence of the Doctor, the Court noted that no definite opinion could be given, and that no other injury other than the one on her lip was present. The Court said that this does not mean that sexual assault was not committed on the prosecutrix, as where the ocular evidence was clear, it will prevail over the medical evidence.

The Court noted that the prosecutrix had been subjected to the two-finger test, though the medical examination was on 29-06-2004 and long before the judgments in Lillu v. State of Haryana, (2013) 14 SCC 643 and State of Jharkhand v. Shailendra Kumar Rai, (2022) 14 SCC 299. The Court re-emphasised this aspect so that “this obnoxious, inhuman and degrading practice is not repeated on victims of sexual assault”.

Further, taking note of Section 3(2)(v) of the 1989 Act, the Court observed that when any person not being a member of the Scheduled Caste or Scheduled Tribe commits any offence under IPC, punishable with imprisonment with ten years or more against a person or property on the ground that such person was a member of a Scheduled Caste or Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine.

The Court took note of Dinesh v. State of Rajasthan, (2006) 3 SCC 771, wherein it was held that sine qua non for application of Section 3(2)(v) was that the offence must have been committed against a person on the ground that such person is a member of the Scheduled Caste/Scheduled Tribe. However, in Patan Jamal Vali v. State of Andhra Pradesh, (2021) 16 SCC 225, it was held that undoubtedly the statute used the word “on the ground” but the juxtaposition of “the” before “ground” does not invariably mean that the offence ought to have been committed only on that ground. The Court held that to read the provision in that manner would dilute a statutory provision meant to safeguard the Scheduled Castes and Scheduled Tribes against acts of violence which pose a threat to their dignity. It was further held that, as the Section stood in its unamended form, knowledge by itself that the victim belonged to Scheduled Caste or Scheduled Tribe cannot be said to be the basis of the commission of the offence. The Court concurred with Patan Jamal Vali (supra).

The Court found that there was no evidence to bring the present case within the threshold of Patan Jamal Vali (supra). There was no evidence whatsoever to establish that the victim’s caste identity was one of the grounds for the commission of the offence. In the absence of any evidence attracting the offence under Section 3(2)(v), the Court was constrained to record an acquittal for the convict from the charge under Section 3(2)(v) of the 1989 Act.

Thus, the Court, while maintaining the conviction of the convict under Sections 366, 342, and 376(2)(g) of the IPC, set aside the conviction under Section 3(2)(v) of the 1989 Act. Regarding the sentence, the Court was not inclined to disturb the sentence of five years imposed on the convict for the offence punishable under Section 366 IPC, as well as the fine and default sentence imposed by the Trial Court and affirmed by the High Court. The Court was also not inclined to disturb the sentence imposed under Section 342 IPC by the Trial Court and confirmed by the High Court. However, to bring the sentence in line with that imposed on the servant for the offence under Section 376(2)(g), the Court modified the sentence of life imprisonment imposed on the convict to rigorous imprisonment for 10 years, along with a fine of Rs. 2,000/- and a default sentence of rigorous imprisonment for one year in case of non-payment of the fine. All sentences were to run concurrently. The accused, who was in custody, was directed to serve out the remaining sentence.